INTERPLAY BETWEEN SARFAESI ACT AND NPA BY - K. AASHIKA

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UN COMMITTEE ON TRADE AND ENVIRONMENT AND ITS ROLE IN BALANCING INTERNATIONAL TRADE AND ENVIRONMENT ISSUES BY - K. AASHIKA

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SUGGESTIO FALSI BY- CHARVI MAHAJAN

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RIGHT TO EDUCATION IN INDIA: A FUNDAMENTAL RIGHT & A FREEDOM TO CARRY OCCUPATION BY - MS. SANJANA DWIVEDI & DR. VIVEK KUMAR

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SEXUAL AUTONOMY OF A WIFE: THE INDIAN PERSPECTIVE BY - PRASHANT BHADU

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ADAPTING SOCIAL SECURITY TO 21ST CENTURY INDIAN ECONOMY: A CASE FOR UNIVERSALISATION BY - ASHISH VERMA

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RIGHT NOT TO BE MISLED: IDENTIFYING A CONSTITUTIONAL BASIS TO FIX ACCOUNTABILITY FOR ELECTION PROMISES BY - DR. RAM CHARAN MEENA

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JUDICIAL LAW MAKING IN INDIA: CATALYST FOR JUSTICE DELIVERY AND SOCIAL MOBILIZATION: A COMPREHENSIVE ANALYSIS BY - PRATIKSHA PRAVIN BARVE

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CANDID ASSESSMENT OF TAX SCRUTINY IN FUTURES AND OPTIONS (F&O) TRADING: LEGAL NOTICE, PRACTICAL REALITIES, AND STRATEGIES FOR ADDRESSING TURNOVER CHALLENGES UNDER THE INCOME TAX ACT, 1961. BY - ADV. SIDDHARTH SACHAN & CA BRIJMOHAN LAVANIYA

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LISTENING TO THE GRASSHOPPERS IN PLUTOCRATIC SOCIETY BY - KRITI MEHTA

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[1] Ajith, P. R. (2016). SARFAESI Act, 2002 - An Effective Tool for NPAs Recovery. International Journal of Management and Social Science Research Review, 1(29) 220-224.

[2] Government of India, “The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest”, Ordinance, New Delhi.

[3] Unny, Mukand.P. (2010). A Study on the Effectiveness of Remedies Available For Banks in a Debt Recovery Tribunal - A Case Study on Ernakulam DRT, Working Paper Series, Centre for Public Policy Research, pp.1-35.

[1] https://www.wto.org/english/tratop_e/envir_e/envir_e.htm

[2] https://www.wto.org/english/tratop_e/envir_e/hist1_e.htm

[3] https://www.wto.org/english/tratop_e/envir_e/envir_negotiatio

[4] https://www.wto.org/english/tratop_e/envir_e/wrk_committee_e.htm

[5] https://link.springer.com/chapter/10.1007/978-94-017-0333-8_6

[7] Our common future by Gro Harlem Brundtland of Norway in 1987

[8] https://www.wto.org/english/thewto_e/coher_e/sdgs_e/sdgs_e.htm

[2] Wellesley, Kenneth. (1960). SUGGESTIO FALSI IN TACITUS.

[3] Janhit Abhiyan v. Union of India, 2022 SCC OnLine SC 1540

[4] India Sawhney v. Union of India, AIR 1993 SC 477

[5] Mohini Jain v. State of Karnataka, AIR 1992 SC 1858

[6] Ashok Kumar Thakur v. Union of India, (2008) 6 SCC 1138

[7] Right of Children to Free and Compulsory Education Act 2009, s. 12

[8] Right of Children to Free and Compulsory Education Act 2009, s. 10

[9] Right of Children to Free and Compulsory Education Act 2009, s. 28

[10] Unni Krishnan v. State of Andhra Pradesh, AIR 1993 SC 2178

[1] State Of Rajasthan v. Narayan Kohli, A.I.R. 1992 SC 2003(India).

[2] Jill Elaine Hasday, Contest And Consent: A Legal History Of Marital Rape, 88 CAL. L. REV. 1373 (2000).

[3] State v. Smith, 85 N.J. 193, 200, 426 A.2d 38, 41 (1981).

[4] Rene Augustine, Marriage: The Safe Haven For Rapists, 29 J. FAM. L. 559 (1991).

[5] Weishaupt v. Commonwealth, 315 S.E.2d 847, 850 (Va.1984). ⁷State v. Smith, 401 So.2d 1126, 1129 (Fla.Dist.Ct.App. 1981).

[6] Harwinder Kaur v. Harmanadar Singh Choudhary, A.I.R 1984 Del 66(India).

[7] Schwartz, The Spousal Exemption For Criminal Rape Prosecution, 7 VT. L. REV.

[10] R v. Hind, As Cited In Shroff, A. And Menezes, N., Marital Rape As A SocioEconomic Offence: A Concept Or A Misnomer!.

[11] Abigail Andrews Tierney, Spousal Sexual Assault, Pennsylvania's Place On The Sliding Scale Of Protection From Marital Rape, 90 DICK.L.REV. 777, 781 (1986).

[12] Anne L. Buckborough, Family Law: Recent Developments In The Law Of Marital Rape, ANN.SURV.AM.L. 343, 345 (1989). S F Waterman, For Better Or Worse: Marital Rape, 15 N.KY.L.REV. 611, 613-14 (1988).

[13] DAVID FINKELHOR & KERSTI YLLO, LICENSE TO RAPE SEXUAL ABUSE OF WIVES 1 (Henry Holt & Co 1^st ed. 1985).

[14] M R Klatt, Rape In Marriage: The Law In Texas And The Need For Reform, 32 BAYLOR L. REV. 109, 114 (1980).

[15] Swaraj Garg V. K.M. Garg, A.I.R. 1978 Del 296(India).

[16] Pamela L. Wood, The Victim, 11 AM.CRIM.L.REV. 335, 347-48 (1973).

[17] Diana E.H. Russell, Rape In Marriage 375-82 (1990) Of The Women Raped By Their Husband, 52% Reported That The Long Term Effects Were Severe, As Opposed To 39% Of Women Who Were Raped By Strangers.

[18] Section 375 Of Indian Penal Code, 1860 provides For At Least 7 Years of Rigorous Imprisonment.

[19] Maria Pracher, The Marital Rape Exemption: A Violation Of A Woman's Right Of Privacy, 11 Golden Gate U.L.REV. 717, 730 (1981).

[21] Weishaupt v. Commonwealth, 315 S.E.2d 847 (1984).

[22] Geannie A. Morris, Note, The Marital Rape Exemption, 27 LOY.L.REV. 597, 598 (1981).

[23] People v. Liberta, 64 N.Y.2d 152. 474 N.E.2d 567, 574 (N.Y.1984) (Holding That the Supreme Court Of New York Recognized That The Court In Griswold v. Connecticut, 381 U.S. 469 (1965), Only Extended The Right Of Marital Privacy To Include Consensual Acts).

[24] Dhruv Desai, Sexual Harrassment and Rape Laws in India, (Mar. 6, 2010) http://www.legalserviceindia.com/articles/rape_laws.htm.

[25] S.9, Hindu Marriage Act, 1955; S.22, Special Marriage Act, 1954. The provision is different worded in the Parsi Marriage and Divorce Act, 1936, but it has been interpreted in such a manner that it has been given the same meaning as under the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. However, the provision is different under the S.32, Indian Divorce Act, 1869 but efforts are being made to give it such an interpretation so as to bring it in consonance with the other laws. The provision under Muslim law is almost the same as under the modern Hindu law, though under Muslim law and under the Parsi Marriage and Divorce Act, 1936 a suit in a civil court has to be filed and not a petition as under other laws.

[26] Paras Diwan, Law of Marriage And Divorce (4^th ed., Universal Law Publishing House).

[27] Hazel D. Lord, Husband and Wife: English Marriage Law From 1750, S. CAL.

[28] Harwinder Kaur v. Harmanadar Singh Choudhary, A.I.R. 1984 Del 66(India).

[31] Crabtree v. Crabtree, (No. 2) (1964) Australian Law Reports 820 (10), Per Selby, J., At 821.

[32] Wheatley v. Wheatley, (1950) I K.B. 39 (9) Per Lord Goddar CJ. At 43.

[34] Saroj Rani v. Sudarshan Kumar Chadha, A.I.R. 1984 SC 1562(India).

[35] A.I.R. 1983 AP 356(India). ³⁶A.I.R. 1984 Del 66(India).

[38] Keshavananda Bharti v. State of Kerala, A.I.R. 1973 SC 1463(India).

[39] H.L.A. HART, THE CONCEPT OF LAW 94 (2d ed. Clarendon Press, Oxford.)

[42] (1999) 2 S.C.C. 228(India). ⁴⁷(2003) 6 S.C.C 611(India).

[43] H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA 491 (Universal Book Traders 2002).

[44] (Mar 11, 2010), ncw.nic.in/.../Recommendations_on_amendments_to_the_laws_relating_to_rape_a nd_related_ %20provsions.pdf.

[1] INTERNATIONAL LABOUR ORGANISATION (ILO), APPROACHES TO SOCIAL SECURITY: AN INTERNATIONAL SURVEY

[2] VICKI PASKALIA, FREE MOVEMENT, SOCIAL SECURITY AND GENDER IN THE EU 24 (Oxford: 2007)

[3] Mark Blaug, The Myth of the Old Poor Law and the Making of the New 23 Journal of Economic History 151, 162 (1963)

[4] JC VROOMAN, RULES OF RELIEF: INSTITUTIONS OF SOCIAL SECURITY AND THEIR IMPACT 111 (The Netherlands Institution for Social Research: 2009)

[8] W.H. BEVERIDGE, SOCIAL INSURANCE AND ALLIED SERVICES 120 (HM Stationary Office, 1942) cited in VROOMAN, supra n.4, 112

[9] INTERNATIONAL LABOUR ORGANISATION (ILO), supra n.1, 80 cited in Vrooman, supra n.4, 112

[10] Article 41 requires the state to make effective provision for “public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.”

[11] See the Kerala Agricultural Workers’ Act 1974, the Kerala Labour Welfare Funds Act 1975, the Kerala

Fishermen’s Welfare Fund Act, 1985, The Kerala Fishermen’s and Allied Worker’s Welfare Cess Act, 2007

[12] See the Kerala Agricultural Workers’ Act 1974, the Kerala Labour Welfare Funds Act 1975, the Kerala Fishermen’s Welfare Fund Act, 1985

[13] See Section 4, Payment of Gratuity Act 1972.

[14] For a discussion on unemployment in India, see Satya Paul, Unemployment in India: Temporal and Regional Variations, 28 (44) Economic and Political Weekly 2407 (October 30, 1993), Deepak Lal, Determinants of Urban Unemployment in India 23 (1) Indian Economic Review 61-81 (1988).

[17] Ramgopa lAgarwala, Nagesh Kumar and Michelle Riboud, Reforms, Labour Markets and Social Security Policy in India: An Introduction in REFORMS, LABOUR MARKETS AND SOCIAL SECURITY IN INDIA (Ramgopal Agarwala, Nagesh Kumar and Michelle Riboud eds. Oxford: 2004) 2. See generally, KP Kannan and J. Brennan eds, THE LONG ROAD TO SOCIAL SECURITY (Oxford: 2013)

[18] Section 2 (9) of the Act includes persons employed through an intermediate employer within the definition of employee. The broad scope of ESIA was exemplified in the case of Royal Talkies. Hyderabad v ESIC [(1978) 4 SCC 204] where the Apex Court explained that the clause ‘in connection with the work of the establishment under s. 2 (9) implies a loose connection and it merely requires that “some nexus must exist between the establishment and the work of the employee.” In words of the Court, he “may not do anything directly for the establishment; he may not do anything statutorily obligatory in the establishment; he may not even do anything which is primary or necessary for the survival or smooth running of the establishment or integral to the adventure.”

[19] Section 2 (f) of the Act includes within the definition of employee a person engaged by or through a contractor.

[21] Ramgopal Agarwala, Nagesh Kumar and Michelle Riboud, supra n.26, 5

[22] Kwong Leung Tang and James Midgley, supra n.10, 40-41

[23] See generally, Kim Van Eyck, Flexibilizing Employment: An Overview, Seed Working Paper No. 41,

International Labour Office,2003

[24] See A Euzeby, Social Security and Part Time Employment 127 International Labour Review 545 (1988)

[26] See D Pieters (ed), CHANGING WORK PATTERNS AND SOCIAL SECURITY EISS YEARBOOK (The Hague, Kluwer Law International, 2000)

[27] Section 2, Unorganised Worker Social Security Act 2008.

[28] Section 3, Unorganised Worker Social Security Act 2008.

[29] NATIONAL COMMISSION FOR ENTERPRISES IN THE UNORGANISED SECTOR (NCEUS), THE CHALLENGE OF EMPLOYMENT IN INDIA: AN INFORMAL ECONOMY PERSPECTIVE (Academic Foundation: 2009). ³⁹ See generally, KP Kannan and J. Brennan, supra n.26

[30] M. Sherraden, Conclusion: Social Security in the Twenty-First Century in ALTERNATIVES TO SOCIAL SECURITY:

AN INTERNATIONAL INQUIRY (J. Midgley and M. Sherradeneds, Auburn House Greenwood Press: 1997), 121-140

[31] United Nations ,World Population Ageing: 1950-2050 (2002), available at http://www.un.org/esa/population/publications/worldageing19502050/

[32] H SADHAK, PENSION REFORM IN INDIA: THE UNFINISHED AGENDA 5-7 [Sage 2013]

[33] Kwong Leung Tang and James Midgley, supra n.10, 42-43; For more on impact of demographic changed on social security, see DE Bloom, Social Security and the Challenge of Demographic Change, 63 (3-4) International Social Security Review 3-21 (2010); and William A Halter and Richard Hemming, The Impact of

Demographic Change on Social Security Financing 34 (3) Staff Papers (International Monetary Fund) 471 (1987)

[34] VICKI PASKALIA, supra n. 2, 40. See also Thakur, Arnold and Johnson, Gender and Social Protection in

Promoting Pro-Poor Growth (OECD 2009) available at https://www.oecd.org/dac/povertyreduction/43280899.pdf

[35] See JAMES, COX AND WONG, THE GENDER IMPACT OF SOCIAL SECURITY REFORM (2008: University of Chicago Press), Martha Macdonald, Gender and Social Security Policy: Pitfalls and Possibilities 4(1) Feminist Economics 1, 22 (1998).

[38] Article 41 requires the state to make effective provision for “public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.”

[39] See Olga Tellis v Bombay Municipal Corporation AIR 1986 SC 180, Delhi Transport Corporation v DTC Mazdoor Congress AIR 1991 SC 101

[43] UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at: http://www.refworld.org/docid/3ae6b3712c.html [accessed 15 May 2016]

[44] Article 9, UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16

December 1966, United Nations, Treaty Series, vol. 993, p. 3, available at: http://www.refworld.org/docid/3ae6b36c0.html [accessed 15 May 2016]

[45] UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 19: The right to social security (Art. 9 of the Covenant), 4 February 2008, E/C.12/GC/19, available at:

http://www.refworld.org/docid/47b17b5b39c.html [accessed 15 May 2016] ⁵⁶ UN Committee on Economic, Social and Cultural Rights (CESCR),ibid.

[47] UN Committee on Economic, Social and Cultural Rights (CESCR),supra n.51

[48] T.H. Marshall, Citizenship and Social Class in INEQUALITY AND SOCIETY (Manza and Sander eds, Norton and Co.: 2009) 149

[50] Sunil Khilnani, An Idea for India, Livemint, November 19, 2010, available at http://www.livemint.com/Leisure/gTnUezEaP7Izd7USQBI3TO/An-idea-for-India.html

[51] For a detailed discussion of universalisation, targeting and self-selection in welfare, see Thandika Mkandawire, Targeting and Universalism in Poverty Reduction, Social Policy and Development Programme Paper No. 23, UNRISD, 2005; Amartya Sen, The Political Economy of Targeting, Annual Bank Conference on

Development Economics, World Bank; 1992; Lant Pritchett, A Lecture on Political Economy of Targeted Safety

Nets, Social Protection Discussion Paper Series No. 0501, World Bank; 2005

[1] Mithilesh Kumar Pandey v. Election Commission of India, 2014 SCC OnLine Del 4771; upheld by the Supreme Court in Mithilesh Kumar Pandey v. Election Commission of India, Petition for Special Leave to Appeal (Case No. 9767/2015) decided on 28 September 2015.

[2] In an ideal scenario, any reference to campaign promises should have included all promises made to the electorate on the campaign trail, irrespective of whether or not those promises are mentioned in a formal manifesto. If this were not the case, it would be extremely easy for political parties to escape accountability by disseminating misleading promises by word of mouth or other means, but not specifying them in the manifesto. However, such a broad definition would imply that an isolated promise made by even a local politician would bind the party if voted to power. Therefore, a pragmatic middle path needs to be adopted. As a result, for the purposes of this paper, any reference to “campaign promises” or “poll pledges” includes not only all manifesto promises (since they are

“officially” endorsed by the party) but also promises that are made by the upper echelons of the party hierarchy, or repeated by numerous political leaders on the campaign trail, or widely disseminated by party functionaries by other means (since it may be implied that such promises have been acceded to by the party leadership, unless specifically denied or objected to). The issue of whether or not a promise that does not appear in the manifesto satisfies the above-mentioned criteria may be construed to be a question of fact.

[3] Stephen D. Sencer, ‘Read My Lips: Examining the Legal Implications of Knowingly False Campaign Promises’ (1991) 90(2) Michigan Law Review 428, 430.

[5] Even if large sections of population in a constituency boycott elections, the election of the representative is not threatened in the absence of a legally specified minimum voter turnout for an election to be regarded as valid. In such cases, while the moral legitimacy of the process may be questioned, its legal validity is beyond doubt.

[6] Swapan Dasgupta, ‘The manifesto and its total irrelevance in elections’ (NDTV, 19 March 2014) accessed 10 January 2021.

[7] ANZ Grindlays Bank Plc. v. The Commissioner, Municipal Corporation of Delhi 1995 SCC OnLine Del 376 [107].

[8] Bromley London Borough Council v. Greater London Council [1983] 1 A.C. 768.

[9] For assessing the impact of social media on elections in India, see Sangeeta Mahapatra, ‘India online: How social media will impact the 2019 Indian General Election’ (South Asia@LSE Blog, 11 January 2019) accessed 10 January 2021.

[10] Luca Corazzini, Sebastian Kube, Michael Andre Marechal and Antonio Nicolo, ‘Elections and Deceptions: An Experimental Study on the Behavioral Effects of Democracy’ (2014) 58(3) American Journal of Political Science 579, 585-586.

[12] Cesi Cruz, Philip Keefer, Julien Labonne and Francesco Trebbi, ‘Making Policies Matter: Voter Responses to Campaign Promises’ (2018) NBER Working Paper No. 24785, 1.

[13] S. Subramaniam Balaji v. Government of Tamil Nadu (2013) 9 SCC 659 [85].

[14] Charles J Walsh and Marc S Klein, ‘From Dog Food to Prescription Drug Advertising: Litigating False Scientific Establishment Claims under the Lanham Act’ (1992) 22(2) Seton Hall Law Review 389, 399.

[15] ibid 398-400. Note that in India, false or misleading advertising does not receive protection under Article 19(1)(a) of the Constitution under the garb of commercial speech. See, Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd. (1995) 5 SCC 139 [17]. The same is also made punishable under Section 89 of the Consumer Protection Act, 2019.

[16] Havells India Ltd. v. Amritanshu Khaitan 2015 SCC OnLine Del 8115.

[17] Robert Pitofsky, ‘Beyond Nader: Consumer Protection and the Regulation of Advertising’ (1977) 90(4) Harvard Law Review 661, 677. ²⁴ Armand Derfner and J. Gerald Hebert, ‘Voting is Speech’ (2016) 34(2) Yale Law & Policy Review 471, 489. ²⁵ Sencer (n 3) 432-433. ²⁶ ibid.

[18] Besides caste or religious loyalties, such factors may include bribery during campaigns, or even voter intimidation.

[20] ibid. ³⁰ ibid. ³¹ A. K. Bhattacharya, ‘Rosy promises, lack of credibility: Why manifestos are becoming irrelevant’ (Business Standard, 10 April 2019) accessed 10 January 2021.

[21] Barry Sullivan, ‘FOIA and the First Amendment: Representative Democracy and the People’s Elusive Right to Know’ (2012) 72(1) Maryland Law Review 1, 59-60.

[24] State of Uttar Pradesh v. Raj Narain AIR 1975 SC 865 [74]; S. P. Gupta v. Union of India AIR 1982 SC 149; The Secretary, Ministry of Information & Broadcasting, Government of India v. Cricket Association of Bengal AIR 1995 SC 1236 [43].

[25] The Secretary, Ministry of Information & Broadcasting, Government of India (n 36) [82].

[26] See People’s Union for Civil Liberties v. Union of India (2013) 10 SCC 1 [28]. The Supreme Court observed that casting of a vote is an instance of the voter exercising his or her freedom under Article 19(1)(a).

[27] Union of India v. Association for Democratic Reforms (2002) 5 SCC 294 [38].

[28] People’s Union for Civil Liberties v. Union of India (2003) 4 SCC 399 [26].

[29] Annabelle Lever, ‘Privacy and Democracy: What the Secret Ballot Reveals’ (2015) 11(2) Law, Culture and the Humanities 164, 174.

[31] S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra AIR 1980 SC 1362 [13]. ⁴⁴ People’s Union for Civil Liberties (n 38) [56].

[32] Justice K. S. Puttaswamy (Retd.) v. Union of India (2017) 10 SCC 1 [297].

[34] Bert-Jaap Koops, Bryce Clayton Newell, Tjerk Timan, Ivan Skorvanek, Tomislav Chokrevski and Masa Galic,

‘A Typology of Privacy’ (2017) 38(2) University of Pennsylvania Journal of International Law 483, 497.

[37] This is in addition to the protection that is already granted to the voter when he or she expresses his or her voting preference under Article 19(1)(a). See People’s Union for Civil Liberties (n 40) [97].

[38] People’s Union for Civil Liberties (n 40) [94]. ⁵² ibid.

[41] Resurgence India v. Election Commission of India (2014) 14 SCC 189 [20]-[22].

[42] Maneka Gandhi v. Union of India AIR 1978 SC 597. Although not very relevant for our discussion, the Supreme Court in another case included the right to know within the broad scope of Article 21, besides it being a part of Article 19(1)(a), thus showing how a single right can fall under multiple interconnected heads. This conclusion reached by the Court, however, was not accompanied by any extensive reasoning or discussion on that particular point, even though the Court acknowledged that access to information was necessary for a participatory role to be played by the people in a democratic system. See Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers, Bombay AIR 1989 SC 190 [34].

[43] Severyna Magill, ‘The Right to Privacy and Access to Abortion in a Post-Puttaswamy World’ (2020) 3(2) University of Oxford Human Rights Hub Journal 160, 171.

[47] Association for Democratic Reforms (n 39) [38].

[48] People’s Union for Civil Liberties (n 40) [94].

[49] The arguments relating to the reasonableness of this assumption have already been discussed in Part 2 of this essay.

[50] One may also argue that credibility of election promises can be a far more important consideration in deciding for whom to vote, than information about certain aspects of the antecedents of a candidate, say, for example, educational qualifications. In fact, Justice Venkatarama Reddi dissented with the majority on this issue in People’s Union for Civil Liberties, by holding that educational qualifications of a candidate did not constitute essential information that the voter ought to know as a matter of right, and thus, did not require compulsory disclosure. See People’s Union for Civil Liberties (n 40) [122].

[51] The act of filing of a false affidavit relating to the information that is to be mandatorily disclosed by the candidate, including his or her antecedents, is made punishable under Section 125A of the Representation of the People Act, 1951.

[52] This proposition is consistent with judicial precedent as well. For instance, the Supreme Court disallowed the practice of leaving blank spaces in affidavits by the candidates, on the ground that it rendered the right of a voter to receive information about the candidate, absolutely ineffective. See Resurgence India (n 55). ⁶⁷ Sencer (n 3) 440.

[53] Khatri (II) v. State of Bihar (1981) 1 SCC 627, 630; Rudul Sah v. State of Bihar (1983) 4 SCC 141; Nilabati Behera v. State of Orissa, AIR 1993 SC 1960 ⁶⁹ Sencer (n 3) 456.

[55] Abdul Rahim v. Ma Budima, AIR 1933 Rang 149, 150.

[56] Examples of such exceptional situations are discussed below in Part 3.4 of this essay, although the instances listed must not be taken to be an exhaustive list.

[57] S. Subramaniam Balaji (n 19) [61.1]-[61.2].

[59] Malavika Prasad and Gaurav Mukherjee, ‘Reinvigorating Bicameralism in India’ (2020) 3(2) University of Oxford Human Rights Hub Journal 96, 108-109.

[60] It is worth noting that while casting a vote in favour of a candidate put up by a party, the voter not only exercises a choice for the candidate, but also for the party symbol.

[61] See, e.g., Association for Democratic Reforms (n 39).

[62] Rambabu Singh Thakur v. Sunil Arora (2020) 3 SCC 733.

[63] Kihoto Hollohan v. Zachilhu 1992 Supp (2) SCC 651 [46].

[65] Nathaniel Persily and Bruce E. Cain, ‘The Legal Status of Political Parties: A Reassessment of Competing Paradigms’ (2000) 100(3) Columbia Law Review 775, 780.

[66] Mark E. Rush, ‘Voters’ Rights and the Legal Status of American Political Parties’ (1993) 9(3) Journal of Law and Politics 487, 510-513. ⁸³ ibid 494.

[67] Tarunabh Khaitan, ‘Political Parties in Constitutional Theory’ (2020) 73 Current Legal Problems 89, 106-107.

[70] See generally, Natasha G Menell, ‘Judicial Enforcement of Socioeconomic Rights: A Comparison between Transformative Projects in India and South Africa’ (2016) 49(3) Cornell International Law Journal 723. ⁸⁸ ibid 727.

[71] People’s Union for Civil Liberties v. Union of India, Writ Petition (Civil) No. 196 of 2001.

[72] International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force

3 January 1976) 993 UNTS 3, art. 2(1); ‘The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights’ (8 January 1987) UN Doc E/CN.4/1987/17, [21]-[24]. The doctrine of progressive realisation of socioeconomic rights is well entrenched in South African rights jurisprudence. See, e.g., the decision of the South African Constitutional Court in Mazibuko v. City of Johannesburg, 2010 (4) SA 1 (CC) [67].

[73] David Bilchitz, ‘Are Socio-Economic Rights a Form of Political Rights?’ (2015) 31(1) South African Journal on Human Rights 86, 107-111.

[75] Margaux J. Hall and David C. Weiss, ‘Human Rights and Remedial Equilibration: Equilibrating Socio Economic Rights’ (2011) 36(2) Brooklyn Journal of International Law 453, 461-462.

[77] This test is inspired from a similar exception to Governmental liability under the doctrine of promissory estoppel. See Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh (1979) 2 SCC 409 [24].

[79] ibid. The need for a dispassionate reassessment of election promises as to their viability, after getting elected, was emphatically approved by Lord Denning. See Bromley London Borough Council (n 13).

[80] Supreme Court Employees’ Welfare Association v. Union of India (1989) 4 SCC 187 [51].

[81] Vipul Prasad, ‘Why poll manifestos in India should be measurable, accountable’ (Moneycontrol, 2 April 2019) accessed 10 January 2021.

[4] Importance of Judicial Role in Law Making, Law Bhoomi Blog, https://lawbhoomi.com/importance-of-judicial-role-in-law-making (last accessed on 28 March, 2024)

[5] N.V. Paranjape, Studies in Jurisprudence & Legal Theory, Allahabad: Central Law Agency, 2008 p. 16

[6] S. Dayal, R. R. Pandey, A text book of jurisprudence. (Allahabad: Central Law Agency, 1965) at 45

[7] Abhinav Misra, Jurisprudence, Agra: UpkarPrakashan, p. 13

2024)

[10] Prof. Dr G.B. Reddy* and Pavan Kasturi, A Comprehensive Analysis on Judicial Legislation in India, https://www.scconline.com/blog/post/2022/03/04/a-comprehensive-analysis-on-judicial-legislation-in-india/ (last accessed on 25/03/2024)

[11] ^{^[11]} Judicial Legislation, Editorial, https://www.drishtijudiciary.com/editorial/judicial-legislation (last accessed on 28/03/2024)

[12] ^{^[12]} Judicial Legislation, Editorial, https://www.drishtijudiciary.com/editorial/judicial-legislation (last accessed on 28/03/2024)

[13] ^{^[13]} Judicial Legislation, Editorial, https://www.drishtijudiciary.com/editorial/judicial-legislation (last accessed on 28/03/2024)

[15] HLA Hart, The concept of Law (Oxford University Press, 1961), p. 12

[16] Upendra Baxi (ed.) K.K. Mathew on Democracy, Equality and Freedom I (1978).

[22] Sachidananda v. State of West Bengal, AIR 1987 SC 1109.

[23] Prerana Srinath, Judicial Law Making Through Dictum In India: A Constitutionally Legitimized Practice https://www.livelaw.in/lawschoolcolumn/constitution-judicial-law-making-judiciary-article-142-supreme-court-205937 (last accessed on 22/03/2024)

[26] Prof. Dr G.B. Reddy* and Pavan Kasturi, A Comprehensive Analysis on Judicial Legislation in India, https://www.scconline.com/blog/post/2022/03/04/a-comprehensive-analysis-on-judicial-legislation-in-india/ (last accessed on 25/03/2024)

[27] M.C. Mehta (2) v. Union of India, (1988) 1 SCC 471

[28] Union Carbide Corpn. (2) v. Union of India, (1989) 2 SCC 540

[29] Vishaka v. State of Rajasthan, (1997) 6 SCC 241

[30] D.K. Basu v. State of W.B., (1997) 1 SCC 416

[31] 1966 SCC OnLine US SC 112 : 16 L Ed 2d 694 : 384 US 436 (1966)

[33] Vishwa Jagriti Mission v. Central Govt., (2001) 6 SCC 577

[34] Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454

[35] Medha Kotwal Lele v. Union of India, (2013) 1 SCC 297

[36] Odisha Vikash Parishad v. Union of India, (2020) 7 SCC 264

[37] Paramvir Singh Saini v. Baljit Singh, (2021) 1 SCC 184

[38] P.N. Bhagwati, Judicial Activism in India (last accessed on 23-03-2024)

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[2] Thappar , K. (2022, February 17). Narendra Modi’s Star Is Falling’: Arundhati Roy. The Wire. https://thewire.in/politics/full-text-narendra-modis-star-is-falling-arundhati-roy

[3] Roy, A. (2022, October 10). Arundhati Roy flags signs of fascism in India, says it is aided by corporate funding. The Hindu. https://www.thehindu.com/news/national/arundhati-roy-dissects-hindutva-fascism/article65988430.ece

[4] Dorschner, J. P. (2024, September 6). Capitalism (A Ghost Story). AMERICAN DIPLOMACY. https://americandiplomacy.web.unc.edu/2014/09/capitalism-a-ghost-story/

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[1] Raghav Sengupta, The Role of the Supreme Court of India as a “Law-making” Institution, Manupatra Articles, https://articles.manupatra.com/article-details/The-Role-of-the-Supreme-Court-of-India-as-a-Law-making-Institution

[9]Gautam Bhatiya, Hardik Choubey, Indian Constitutional Law and Philosophy, https://indconlawphil.wordpress.com/tag/judicial-legislation/, (last accessed on 28/03/2024)

[23] Prerana Srinath, Judicial Law Making Through Dictum In India: A Constitutionally Legitimized Practice https://www.livelaw.in/lawschoolcolumn/constitution-judicial-law-making-judiciary-article-142-supreme-court-205937 (last accessed on 22/03/2024)

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